Rhoda Mongina Ondoro & 2 others v Johnstone Nyanyuki Menge [2020] eKLR Case Summary

Court
Environment and Land Court at Kisii
Category
Civil
Judge(s)
J.M. Onyango
Judgment Date
July 28, 2020
Country
Kenya
Document Type
PDF
Number of Pages
2
Explore the case summary of Rhoda Mongina Ondoro & 2 others v Johnstone Nyanyuki Menge [2020] eKLR, highlighting key legal principles and outcomes. Perfect for legal professionals and students seeking insights.

Case Brief: Rhoda Mongina Ondoro & 2 others v Johnstone Nyanyuki Menge [2020] eKLR

1. Case Information:
- Name of the Case: Rhoda Mongina Ondoro & Others v. Johnstone Nyanyuki Menge
- Case Number: E.L.C CASE NO 1130 OF 2016 (O.S)
- Court: Environment and Land Court at Kisii
- Date Delivered: 28th July 2020
- Category of Law: Civil
- Judge(s): J.M. Onyango
- Country: Kenya

2. Questions Presented:
The central legal issue before the court was whether the Applicant, Johnstone Nyanyuki Menge, was entitled to an order of stay of execution or an injunction pending appeal regarding the property in question.

3. Facts of the Case:
The Applicant, Johnstone Nyanyuki Menge, sought to appeal a judgment delivered on 23rd October 2019, which dismissed his suit concerning adverse possession of two portions of land (12 acres and 2 acres) in the GESIMA SETTLEMENT SCHEME. The Respondents, Rhoda Mongina Ondoro, Thomas Ondoro, and Margaret Ondoro, were the parties against whom the Applicant had brought the suit. Following the judgment, the Respondents began actions to fence the disputed land, prompting the Applicant to seek legal recourse to maintain the status quo until his appeal could be heard.

4. Procedural History:
The Applicant filed a Notice of Motion on 16th December 2019, requesting a stay of execution and an injunction against the Respondents. The Respondents opposed the application, asserting that there was nothing to stay since the court had dismissed the Applicant's suit with costs. The application was submitted for consideration through written submissions from both parties, where various legal authorities were cited to support their respective positions.

5. Analysis:
- Rules: The court considered the relevant provisions under the Civil Procedure Rules, particularly Order 40 Rules 1 and 2, which govern the issuance of injunctions, and the principles regarding stay of execution pending appeal.
- Case Law: The court referenced several precedents, including *Malcom Bell v. Daniel Toroitich Arap Moi (2013) eKLR* and *Nairobi Metropolitan PSV SACCOS Union Ltd & 25 Others v. County of Nairobi Government (2014) eKLR*, to outline the requirements for granting a stay of execution. These cases emphasized the necessity for an applicant to demonstrate an arguable appeal and the potential for substantial loss if the stay were not granted.
- Application: The court found that the Applicant's suit had been dismissed without any enforceable order, meaning there was nothing to execute or stay. It concluded that since the Respondents were merely entitled to costs, and the Applicant had not demonstrated an arguable appeal or the potential for substantial loss, the application for both stay and injunction lacked merit.

6. Conclusion:
The court dismissed the Applicant's application for stay of execution and injunction, ruling that there was no enforceable order to stay and that the Applicant had not sufficiently demonstrated the merits of his appeal. The decision reaffirmed the principle that a stay of execution cannot be granted where no positive order exists.

7. Dissent:
There were no dissenting opinions noted in the ruling.

8. Summary:
The court's ruling in *Rhoda Mongina Ondoro & Others v. Johnstone Nyanyuki Menge* emphasized the importance of demonstrating an arguable case for appeals and the necessity of having an enforceable order for stay applications. The dismissal of the application underlined the procedural limitations within civil litigation regarding stays and injunctions, setting a precedent for future cases involving similar issues of property disputes and appeal processes in Kenya.

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